People v. Ockrey

142 A.D.3d 511, 35 N.Y.S.3d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 2016
• Docket: 2013-08204
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered July 19, 2013, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention, raised in his main brief and his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 [2011]). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v Fabers, 133 AD3d 616, 617-618 [2015]; People v Addison, 107 AD3d 730, 732 [2013]). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Guzman, 138 AD3d 1140 [2016]; People v Renaud, 137 AD3d 818, 820-821 [2016]; People v Addison, 107 AD3d at 732; People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

Mastro, J.R, Rivera, Sgroi and Maltese, JJ., concur.